Today, U.S. District Court Judge Edward R. Korman heard arguments regarding the Obama administration’s Motion to Stay his Order from April 5, 2013, requiring that emergency contraception be made available without age and point-of-sale restrictions. Over a two-hour period, Judge Korman made it clear that the government’s position was unjustifiable. Calling the government’s conduct a “charade” the Judge condemned the “political influence” that has caused a “total and complete corruption of the administrative process.”

“As Judge Korman made clear today, the administration’s tactics affect all women but have the greatest negative impact on poor women, young women and African American women, as well as immigrant women. This is politics at its worst and the administration should be ashamed of its duplicitous conduct,” stated Andrea Costello, Senior Staff Attorney at the Partnership for Civil Justice Fund and counsel for the plaintiffs in the litigation.

“President Obama sought to sacrifice the reproductive rights of women of all ages at the altar of his political strategy,” stated Mara Verheyden-Hilliard, Executive Director of the Partnership for Civil Justice Fund. “He wants to placate the political right wing at the expense of the health needs and reproductive rights of women. It is as plain as day that the Obama administration has used deception and distraction as a tactic to avoid complying with the Court Order to make the Morning After Pill available without age restriction or identification barriers.”

The Court indicated that it would issue a ruling on the government’s motion by the end of the week.

The Partnership for Civil Justice Fund (PCJF) represents the plaintiffs, grassroots feminists activists with National Women’s Liberation (NWL) and 15-year-old Anaya Kelly in Tummino v. Hamburg. The lawsuit was filed along with the Center for Reproductive Rights and Southern Legal Counsel against the Food and Drug administration and Health and Human Services.

On April 5, the Court ruled in the plaintiffs’ favor that there was no scientific basis for the Obama administration to continue to restrict access to emergency contraception. Judge Korman ordered that it be made available to women and girls “without a prescription and without point-of-sale or age restrictions within thirty days.” The Court found that the FDA had improperly restricted this safe and effective contraceptive after “political interference” from the White House, and had done so against the medical and scientific evidence recommending the drug be made readily available.

Instead of complying with the Court’s Order, the government announced last Tuesday that it would force all women and girls to present government-issued ID to store clerks in order to obtain emergency contraceptives, and that it would continue to deprive over-the-counter access to young teenagers. The next day, Wednesday, the government announced it was appealing the decision and that it was seeking a stay of the order pending appeal.

The Honduran Congress is about to vote on a proposal that would send women to jail if they use the morning-after pill — even for victims of sexual assault. But the President of the Congress can stop this. He’s concerned about his international image and his future in politics, so our massive outcry can shame him and stop this attack on women.

Honduras is just days away from approving an extremist law that would put teenagers in prison for using the morning-after pill, even if they’ve just been raped. But we can stop this law and ensure women have the chance to prevent unwanted pregnancy.
Some Congress members agree that this law — which would also jail doctors or anyone who sells the pill — is excessive, but they are bowing to the powerful religious lobby that wrongly claims the morning-after pill constitutes an abortion. Only the head of the Congress, who wants to run for the Presidency and cares about his reputation abroad, can stop this. If we pressure him now we can shelve this reactionary law.

For those whose nostalgia for the Bush administration is unfulfilled by former Vice President Dick Cheney’s snarling television appearance, there is a new window into the soul of the old regime. It is the brutally frank account of how political operatives and ideological helpmates of George W. Bush violated the law in their efforts to keep birth control away from American women—particularly teenagers at the greatest risk of an unplanned and life-altering pregnancy.

The broad outlines of the case against Bush’s Food and Drug Administration for trying to block the approval of over-the-counter sales of the morning-after pill, or Plan B, are widely known. For more than five years, the loyal Bushies at the agency blocked action by subverting science, overruling medical professionals and abandoning FDA standards that have long governed how drugs are switched from prescription-only to over-the-counter availability.

It was done, of course, at the behest of anti-abortion zealots who consider many commonly used birth control methods as equivalent to terminating a pregnancy. When the FDA finally approved over-the-counter sales in 2006, it restricted them to women 18 and older and tried to impede the pill’s use by insisting that pharmacies keep the drug out of plain view.

U.S. District Judge Edward R. Korman, ruling in a lawsuit brought by the drug’s sponsors and others, now has ordered the FDA to reconsider the age and availability restrictions on the morning-after pill.

His decision is a chilling compendium of accounts by doctors and other FDA professionals who were routinely overruled by the president’s political henchmen. Sandra Kweder, a veteran of the agency’s office that dealt with new drugs, testified of being told by superiors that the Bush White House was behind decision-making on the morning-after pill, and “it was made very clear that there were a lot of constituents who would be very unhappy with … an over-the-counter Plan B and … [there was] part of the public that needed to have the message that we were taking adolescents and reproductive issues seriously.”

But taking these issues seriously would have meant acknowledging that those most likely to benefit from quick availability of birth control after unprotected sex are, in fact, teenagers. In 2004, the court decision says, Curtis Rosebraugh of the FDA’s over-the-counter drug team not only recommended approval, but “he suggested that Plan B could decrease unwanted teen pregnancy by up to 70 percent and reduce teen abortions.”

The court’s decision is tragically relevant. The teen birth rate has increased for the past two years—after 14 consecutive years of decline.

Was the FDA’s ideological war on birth control a cause? No one can know. What we know is that it certainly did not help a distraught teenager.

Nor did the pernicious spread of federally financed abstinence-only sex education programs during the Bush era. Every sound study of these programs has shown them to have failed at preventing teen sexual activity. Some have indicated that when kids who’ve been through abstinence-only programs do begin to have sex, they are less likely to use birth control. Even Bristol Palin says that telling teens to be abstinent “is not realistic at all.”

The Obama administration’s FDA is expected to conduct the new review of the morning-after pill that the court ordered. Anti-birth-control advocates are out, scientists are in. There’s little doubt that the drug’s safety and effectiveness—the only considerations that were supposed to be taken into account in the first place—will hold sway.

Yet White House plans on abstinence-only education programs remain foggy. Its budget blueprint calls for financing “evidence-based” sex education that provides “medically accurate and age-appropriate information” to youths. This is the political code we’ve been forced to start using for giving teenagers the facts about pregnancy and birth control. But the president has also vowed to fund “faith-based efforts” to reduce teen pregnancy.

It takes a leap of faith, indeed, to see how these two objectives can be reconciled without sacrificing science—and the lives of girls and women who should be able to depend on it.

If Bush waged a war on science then yesterday the war crime tribunal spoke. The U.S. District court of the Eastern District of New York ruled that the Bush administration had politicized a once respected regulatory agency, the FDA, for bending the law to its right wing purposes. The court’s condemnation was comprehensive and brutal, all but labeling the Bushies political criminals. At issue was the FDA’s decision to overrule its staff recommendation and restrict access for adolescents to one of the most effective methods of preventing unwanted pregnancy, emergency contraception. The Court, in one excoriating stroke, reversed the first (and let’s hope last) ideological decision the FDA ever made.

The decision could not have been more dismissive of the Bush administration’s maneuverings. Mincing no words, the Court concluded that the FDA “acted in bad faith and in response to political pressure,” “departed in significant ways from the agency’s normal procedures,” and engaged in “repeated and unreasonable delays.” The court also found that the FDA’s justification for denying over-the-counter access to minors “lacks all credibility,” and was based on “fanciful and wholly unsubstantiated ‘enforcement’ concerns.” The Court ordered the FDA to reconsider it’s decision based on scientific evidence alone. In the meantime, it ordered the agency to make the contraceptive available over-the-counter to 17-year-olds within 30 days as it now does for adults.

The decision comes amidst news that US teen birth rates are spiking for the second year in a row. Those Bush era virginity pledgers are shifting smoothly into teen motherhood — the legacies of ignorance-only sex education and restricted access to and information about contraception.

The decision was prompted by a case, Tummino v. von Eschenbach, brought by the Center for Reproductive Rights (CRR) in 2005. The plaintiffs in the case were a grassroots groups called the Morning After Pill Conspiracy along with over 70 medical and public health organizations, scientists, and parents. For those who did not follow the case closely it’s worth reviewing not only how the Bushies imposed their theological agenda, but how they indifferently bent regulatory procedures. The administration ruthlessly ignored the facts and coerced FDA scientists to implement its anti-science agenda. According to a CRR press release, “Before its action on Plan B (emergency contraception) the FDA had never restricted a non-prescription drug based on a person’s age, nor had the Bush Administration ever been consulted by the FDA about an over-the-counter drug application. Depositions of senior FDA officials by the Center in 2006 indicated that the Bush Administration sought to unduly influence the agency during the Plan B application review process. Testimony also indicated that officials involved in the decision-making process were concerned about losing their jobs if they did not follow the administration’s political directives.” It was in other words, get with the program.

CRR continued: “Other evidence uncovered during the lawsuit showed that the agency repeatedly departed from its own established procedures during the FDA case, from filling the reproductive health committee with political “operatives” to making a decision to reject over-the-counter access to Plan B before completion of the standard review.”

For years, I’ve been following the right’s takeover of what had been a scientifically driven process. In researching a book, How the Pro-Choice Movement Saved America, I studied the violation of the FDA in detail. One fundamental thing I learned: anti-contraception crusaders were not just interested in limiting access for minors. Their true intent was to prevent all women from easy access to the pregnancy prevention method. Their more uncensored leaders, like Judie Brown of the American Life League, admitted as much, explaining, “the best thing the FDA can do now for the American women and their progeny is to take the next logical step and remove these pills for the market altogether.”

In the service of this goal, it seemed that nothing was off limits, not scientific integrity nor the will of the majority. The decision to limit minors’ access to emergency contraception was based on phony arguments put forth in particular by Bush appointee to the FDA panel, David Hager, a long-standing opponent of contraception. Hager’s supposed concern was that the proven usefulness of the medication would be overshadowed by 9 and 10 year olds who would “abuse” the drug, as if it were some sort of crack for kids. During the application review process, Hager called for unavailable research to quell his “concerns” that the drug would be abused by pre-teens. “The plans for introduction of Plan B into the non-treatment setting need more evaluation if it is going to be generalizably available to a nine year old regardless, a ten year old regardless of, you know; there’s no restriction,” Hager explained.

This line of argument shocked other panel members. One, Dr. Abbey Berenson, a professor of pediatrics and ob/gyn at University of Texas, countered, “I would just like to make a point that it is extremely rare that the nine or ten year old has menstrual cycles and so if we’re going to talk about adolescents, let’s talk about the mean age of menarche in this country is 12, and I can’t imagine where a nine-year-old would get $40 to go buy Plan B over the counter and who would buy it for this nine year old.”

The drug had been studied as part of the effort to determine whether EC was safe. Females from twelve to fifty had been sampled, including sixty-six between the age of twelve and sixteen years old. Adolescents understood 60 to 97 percent of the drug-product package directions and materials, at a comprehension level similar to that of women as a whole and one that easily met standards previously accepted for the approval of the other over-the-counter drugs.

Hager continued to create a straw man, or in this case, straw girl, that defenseless nine or ten year old, and then imagined that she was taken advantage of. It was an argument that none of his illustrious fellow panel members thought had merit. Hager nonetheless persisted: “Well I’m sorry, but there are young women that age [under twelve] who do start menstrual cycles and although the numbers aren’t large, it is enough of a concern that if there’s an 11-year old who is having a menstrual period and becoming sexually active, then she chooses to access this means of emergency contraception, and my only point is not the number. It’s that we don’t have any information available on that younger age population.”

Of course, less than six percent of girls younger than age eleven have started their menses, and 4.2 percent of girls under age thirteen are sexually active. Take that microscopic demographic and divide it by the percent that know EC even exists and who also have $40 to drop and you have the nearly non-existent basis for Hager’s, and what would eventually be the FDA’s, argument against extending over-the-counter access to EC for minors.

After the FDA decision to restrict minor’s access to the contraceptive method, several panel members who favored over-the-counter access expressed their outrage at the decision, writing, “If groups with moral objections wish to prevent the sale of a class of drugs, they should proceed through the legislative process. They should not corrupt the scientific review process of the FDA to achieve their ends. We believe it will be very hard to put this genie back in the bottle. We squander public trust at out peril.”

Today, the US district court finally got the anti-contraception genie, and some of the bullying lawless politics of the Bush era, back in the bottle, at least for now. As for the public’s trust, that’ll take a little longer to fix.